Read historian Fred Borch's opinion of Aiken's defense here.
Did Mary Surratt's lawyer, Frederick Aiken provide her an adequate defense, considering the death penalty hung over the trial like a loosely secured guillotine?
Frederick Aiken was not Mary's sole attorney, as seen in the film. John Clampitt, Aiken's law partner, shared the defense table and deserves to share responsibility for Mary's failed defense. But both men were terribly inexperienced for a trial of such significance -- neither one seems to have had more than a couple years of hands-on legal or courtroom experience.
Mary's first choice of counsel was a former U.S. Attorney General, Senator Reverdy Johnson of Maryland. Johnson brought Aiken and Clampitt on as his assistants, though within days of the start of the trial, Johnson disappeared from the courtroom, leaving the day-to-day trial work in the hands of these two very junior attorneys.
We have no idea if Johnson communicated with Mary during the rest of the trial, but one can only imagine how she must have felt. She was a smart woman, and his desertion would seriously destabilize and prejudice her already weak defense.
There were many facts brought up at the trial that weighed heavily against Mary; and taken together they showed Mary's complicity with Booth's plans to kidnap, and then assassinate, President Lincoln. But she also had some advantages in court. Victorian notions of female behavior and capabilities could have worked in her favor. After all, women were rarely prosecuted for anything in that era; what's more, the Federal government had never hanged a woman. Why would they do so now?
Mary's Catholicism also played a very complicated role during the trial. It both hurt and helped her. Rabid anti-Catholicism, mostly centered on long held, deep suspicions about the Pope's wealth and power, manifested itself in the mid-nineteenth century in the form of racist political parties (the Know Nothings, for instance), anti-immigration laws, deadly violence, and everyday bigotry and prejudice against Roman Catholics. But Mary's intensely felt religious devotion spoke to an audience that also identified with her Christian piety.
The rules and procedures of a military tribunal placed Aiken and Clampitt at considerable disadvantage. Their inexperience and lack of time to prepare for an adequate defense proved to be an ill-fated. They did mount a vigorous defense -- by the end of the trial their passion and dedication to Mary is clear -- but they also made some serious missteps, steps that cost their client potentially valuable sympathy and support from the court and the public. In their defense, however, they had little flexibility, and we have no idea how much or little Mary helped them. From my perspective, she did little to aid her own defense, and an attorney can only do so much if the client is not cooperative. Indeed, it was later reported that Aiken and Clampitt were frustrated by Mary's silence.
Oddly, given the anti-Catholic sentiment of the times, the team called five priests as defense witnesses to testify regarding Mary's Christian piety and goodness. On cross examination, the priests admitted they did not know her very well. Mary seemingly had no friends. All the defense character witnesses either had negligible relationships with Mary, or were rebels themselves whose own characters reflected badly on Mary. Aiken even called Mary's rebel brother Zadoc Jenkins to testify on her behalf without identifying him to the court as a relative of hers. The prosecution took great joy in exposing what appeared to be a sneaky ruse on the part of Aiken.
Perhaps most damaging was Aiken's and Clampitt's cross-examination of prosecution witnesses. Incriminating testimony against Mary intensified almost daily, and their attempts to discredit the witnesses and their testimony nearly always backfired. In some instances, they asked witnesses to repeat their damning testimony over and over again. In fact, in several cases they recalled prosecution witnesses and asked them to repeat their testimony again. Their intent is never clear and any gains they hoped to achieve never materialized. On several occasions, Aiken and Clampitt were caught off guard by negative testimony from witnesses they called to the stand.
Mary, too, seems to have become concerned late in the trial that her defense counsel was not handling her case effectively. Mary approached Frederick Stone, David Herold's attorney, to help her defense team. But it was too late. None of the defense lawyers were having much luck in that courtroom. They all faced the same disadvantages with the military tribunal as Mary's team. Though the other defense attorneys were far more experienced, the significant, incontrovertible evidence against them all could not be overcome. These lawyers could only hope for lighter sentences. Four of the conspirators were lucky. Mary and the other three who hanged with her were not.
THE CONSPIRATOR's Frederick Aiken is a young idealist, utterly unprepared for the U.S. government's seeming disregard of Surratt's rights as a citizen. This may be an accurate depiction of Aiken. In reality, Aiken and Clampitt, convinced of their duty to defend Mary to the best of their abilities, lacked experience as trial attorneys and were left to defend her against great odds. But some of that responsibility must be placed squarely with Senator Reverdy Johnson. His actions may have ultimately doomed her.
Kate Clifford Larson, PhD., is an historian and author of "The Assassin's Accomplice: Mary Surratt and the Plot to Kill Abraham Lincoln" (Basic Books, June 2008). With degrees from Simmons College and Northeastern University, and a doctorate in history from the University of New Hampshire, Larson... More